Best-Simpson v Gosseen

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Best-Simpson v Gosseen 2012 NY Slip Op 30749(U) March 22, 2012 Sup Ct, New York County Docket Number: 111313/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. .- . . UED ON 312712012 . . . . . . . . . [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY c ( . . J i 'id ; - . , , - - PART ' JusUce Index Number : 111313/2011 BEST-SIMPSON, COURTNEY l a 1 I MOllON SEQ. NO.' L ( ) I vs. GOSSEN, ROBERT ET AL. SEQUENCE NUMBER : 001 - c ? I MOTION DATE \I DISMISS Tho following papers, numbsred 1 to -, Notlce of MotIonlOrder to Show Cause Aniwsring Affidavit8 were read on this motion toHor d > ,-f) ,\ 5&OLb LA 's I INo(+ I IWi). IN O W . -AffldavlEs - ExhiblG - Exhibitm Replying Affldavlta - ,a Upon the foorsgolng papem, It It ordered that thlr motlon Is Dated: * : I , , J.S.C. 2012 I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... - 3. CHECK IF APPROPRIATE: MOTION IS: ................................................ CASE DISPOSED GRANTED 0DENIED 0S E l l L E ORDER DO NOT POST GRANTED IN PART OTHER 0SUBMIT ORDER uFIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OFNEW Y O N : PART 5 COURTNEY JANE BEST-SIMPSON, Plaintiff, -againstROBERT GOSSEEN, et al. Index No. 1113 13/11 Motion date: Motion Seq. No.: Motion Cal. No.: 12/1/11 00 1 13 DECISION AND ORDER For defendants Cohen Hurkin, el al. and Alan Tennenbaum, Esq.: Mark R. Anesh, Esq. Lewis Brisbois Bisgaard & Smith, LLP 77.Water Street, 21" Floor New York, NY 10005 2 12-232-1300 .. By notice of motion dated October 28,201 1 and submitted on default, defendants Cohen Hurkin Ehrenfeld Pomerantz & Tennenbaum, LLP and Alan Tennenbaum, Esq. (moving defendants) move pursuant to CPLR 321 l(a)(7) and 22 NYCRR 130-l.l(a) and (c) for an order dismissing plaintiff's claims against them, imposing sanctions against her in the form of the costs and expenses they incurred in defending the instant action, and enjoining her from further filings in this matter without prior court approval or representation by counsel. Sometime before June 23, 201 1,430 Clinton Avenue Associates commenced a landlordtenant action against plaintiff. (Affirmation of M r K. Anesh, Esq., dated Oct. 3 1, 201 1). ak Moving defendants represent 430 Clinton Avenue Associates in that action. (Id). On June 23,201 1, plaintiff, representing herself, commenced an action against moving defendants, along with nearly 50 other defendants, some of whom are named as defendants here, [* 3] with the filing of a sumions and complaint in Supreme Court, Kings County. ( I d , Exh. B). On or about October 4,201 1, plaintiff, again self-represented, commenced the instant action with the filing of a summons and complaint, asserting the following claims against moving defendants: [Tlhe law firm of Cohen, Ehrenfeld, etc. made sure that Best-Simpson would have an even further distraction on that date, by sending her on August 5, 20 10, a notice that she would be schedule[d] for an [elxamination before trial in her landlord-tenant case on that date. ... It is alleged that these defendants (430 Clinton Avenue Associates, Mark Leavitt, the law fr of Cohen, Ehrenfeld, Tannenbaum) conspired with the defendants to hold Jane Bestim Simpson hostage in landlord tenant [clourt for over the last 3 years with the aiding and abetting of several Civil Cowt Ijludges, who have committed fraud in the assignment of the case to them specifically; to injure, harass, delay, dismiss and stall said action and permit the petitioners in that case to continue said action . . . in an effort to insure that said landlord tenant action strategically coincides with [the instant] litigation, so much so that her recent landlord tenant case was deliberately delayed by [the judge], [from] July 13,2010 to August 5,2010 to coincide with Courtney Best-Simpson filing an action against the defendants in the instant matter. (Id.). By affirmation dated October 3 1, 20 1 1,moving defendants counsel states that, [ulpon information and belief, a majority of the co-defendants in the Kings [County] [alction have filed motions to dismiss, all of which remain pending. (Id.), 11. CONTENTIONS Moving defendants assert that plaintiff has failed to state a claim for aiding and abetting fraud, as her complaint contains only conclusory allegations and lacks specificity andthat in any event she has failed to allege that their actions proximately caused her damages. (Mem. of Law). They also contend that the facts underlying the Kings County action are the same as those underlying the instant action, that plaintiffs filing of duplicate, meritless actions is frivolous, and that she should thus be sanctioned and enjoined from further litigation. (Id.). - 2 [* 4] 111. ANALYSE A. Standard for dismiss$ Pursuant to CPLR 321 l(a)(7), a party may move at any time for an order dismissing a cause of action asserted against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, accept the alleged facts as true, and accord the nonmoving party the benefit of every possible favorable inference. (Leon v Martinez, 84 NY2d 83, 87 [1994]; Thomas v Thomas, 70 AD3d 588,590 [lgt Dept 20101). Liberally construing plaintiffs complaint, she appears to be asserting claims for aiding and abetting fraud and conspiracy. To state a claim for aiding and abetting fraud, a plaintiff must allege the existence of the underlying fraud, actual knowledge, and substantial assisfahce. (Uster v Kirschner, 77 AD3d 5 1, 55 [ 1 Dept 20 lo]). Claims for fraud must be pleaded with sufficient particularity, specifying in detail the circumstances constituting the wrong (CPLR 3016[b]) and alleging the elements of the cause of action, misrepresentation of a material fact, falsity, scienter, and deception (Barclay Arms, Inc. v Barclay Arms Assocs., 74 NY2d 644,647 [1989]). As plaintiff fails to allege the elements of the underlying fraud, she has failed to state a cause of action for aiding and abetting fraud. New York does not recognize civil conspiracy to commit a tort a an independent cause s of action; rather, such a claim stands or falls with the underlying tort. (Scott v Fields, 85 AD3d 756,757 [2d Dept 201 1I>. Therefore, to the extent that plaintiff is asserting conspiracy against moving defendants, it fails. In light of this determination, moving defendants contentions as to plaintiff s failure to plead proximate cause of her damages need not be considered. - 3 [* 5] J3. SanCtlOI1S Pursuant to 22 NYCRR 130-1.1(a), [tlhe court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney fees[ ] resulting from frivolous conduct. Conduct is frivolous if, as pertinent here, it is completely without merit in law and Cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law or was undertaken . . . to harass or maliciously injure another. (22 NYCRR 130-1.1[c]). The following must be considered in determining whether conduct is frivolous : the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party. . . (Id.). Absent any indication that plaintiff filed the instant action to injure or harass moving defendants, and as no decision has been rendered on the motions to dismiss pending in the King County action such that plaintiff should be aware that her claims lack a legal basis, sanctions are inappropriate. CInlunction wainst hture filinps Parties may be enjoined from further litigation where they have been found to have engaged in frivolous conduct. (See Fowler v Confirti, 194 AD2d 394 [1 Dept 1993J [court found that plaintiff-attorney acted frivolously in asserting defamation claim against other attorney arising out of oral argument in underlying action and enjoined him from any further litigation emanating from [the underlying] case ]; Martin-Trigona v Capital Cities/ABC, Inc., 145 Misc 2d 4 [* 6] 405 [Sup Ct, New York County 19891 [where plaintiff was law school graduate and continued to prosecute action after being advised by [the] court of the baseless nature of th[e] action, court enjoined him from making additional filings or commencing additional actions as pro se]). As plaintiff has not been found to have engaged in frivolous conduct, I decline to enjoin her from engaging in future litigation in this matter. JV. CONCLUSION Accordingly, it is hereby ORDERED, that moving defendants motion to dismiss is granted to the extent that the complaint is hereby severed and dismissed in its entirety as against defendants Cohen Hurkin Ehrenfeld Pornerantz & Tennenbaum, LLP and Alan Tennenbaum, Esq. with costs and disbursements to Cohen Hurkin Ehrenfeld Pomerantz & Tennenbaum, LLP and Alan Tennenbaum, Esq., as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of Cohen Hurkin Ehrenfeld Pornerantz & Tennenbaum, LLP and Alan Tennenbaum, Esq.; and it is further ORDERED, that the remainder of the action shall continue; and it is further ORDERED, that moving defendants motion for sanctions is denied; and it is further ORDERED, that moving defendants motion for an order enjoining plaintiff from further litigation in this matter without prior court approval or representation of counsef;s ENTER: DATED: March 22,20 12 New York, New York 5 &nL.

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